Chieu v. Canada (Minister of Citizenship and Immigration)

Chieu v. Canada (Minister of Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
2002-01-11
Neutral citation
2002 SCC 3
Report
[2002] 1 SCR 84
Case number
27107
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Immigration
Notes
SCC Case Information: 27107
Decision Content
Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3
Huor Chieu Appellant
v.
Minister of Citizenship and Immigration Respondent
and
Canadian Council of Churches and
Immigration and Refugee Board Interveners
Indexed as: Chieu v. Canada (Minister of Citizenship and Immigration)
Neutral citation: 2002 SCC 3.
File No.: 27107.
2000: October 10; 2002: January 11.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the federal court of appeal
Administrative law — Judicial review — Standard of review — Immigration Appeal Division of Immigration and Refugee Board — Standard of review applicable to Immigration Appeal Division’s decisions on appeals by permanent residents from removal order.
Immigration — Removal orders — Appeals by permanent residents — Scope of discretionary jurisdiction of Immigration Appeal Division of Immigration and Refugee Board under s. 70(1)(b) of Immigration Act — Whether Immigration Appeal Division entitled to consider potential foreign hardship when dealing with appeals from removal orders by permanent residents — Interpretation of phrase “having regard to all the circumstances of the case” in s. 70(1)(b) — Immigration Act, R.S.C. 1985, c. I‑2, s. 70(1)(b).
The appellant was born in Cambodia in 1966, but was taken by his family to Vietnam in 1975 in order to escape the Cambodian civil war. He married a Vietnamese citizen in 1988, and their son was born that same year. In 1991, the appellant’s sister sponsored the family, including the appellant, to come to Canada. On his application for permanent residence in Canada, the appellant misrepresented his marital status, stating he was single with no dependants, in order to be eligible to be sponsored as an accompanying dependant of his father. The appellant landed in Canada in 1993 with his parents and brothers, and became a permanent resident. He subsequently applied to sponsor his wife and child to come to Canada. The immigration officer reported that the appellant had become a permanent resident by reason of a misrepresentation of material fact contrary to s. 27(1)(e) of the Immigration Act and, after an inquiry, an adjudicator ordered the appellant’s removal pursuant to s. 32(2) of the Act. His appeal to the Immigration Appeal Division (“I.A.D.”) of Canada’s Immigration and Refugee Board under s. 70(1)(b) of the Act was dismissed, and that decision was upheld by the Federal Court, Trial Division and the Federal Court of Appeal. Both courts held that the I.A.D. was correct in refusing to consider potential foreign hardship when reviewing the removal order.
Held: The appeal should be allowed.
The standard of review applicable to the I.A.D.’s decision is correctness. First, the appeal involves a serious question of general importance certified pursuant to s. 83(1) of the Act, generally of precedential value. Second, the issue is one of jurisdiction, an area of law where little deference is shown by the courts, as administrative bodies must generally be correct in determining the scope of their delegated mandate. Third, the I.A.D. is not protected by a strong privative clause. Lastly, appeals under s. 70(1)(b) do not require the I.A.D. to engage in a polycentric balancing of competing interests, but rather to adjudicate the rights of individuals vis‑à‑vis the state.
This case turns on the interpretation given to the phrase “having regard to all the circumstances of the case” in s. 70(1)(b) of the Immigration Act. The modern approach to statutory interpretation leads to the conclusion that the I.A.D. is entitled to consider potential foreign hardship under s. 70(1)(b) when deciding to quash or stay a removal order made against a permanent resident, provided that a likely country of removal has been established. This is a case where the ordinary reading of the statute is in harmony with legislative intent and with the scheme and object of the Act.
An ordinary and grammatical sense of the phrase “all the circumstances of the case” favours a broad interpretation of s. 70(1)(b). The words do not provide detailed guidelines as to how this discretionary jurisdiction is to be exercised, but instead leave the scope of the discretion open‑ended. The use of the word “all” in that context suggests that the greatest possible number of factors relevant to the removal of a permanent resident from Canada should be considered. It is evident that one such factor is the conditions an individual would face upon removal. The word “all” also suggests that realistic possibilities are just as relevant as certainties in making this discretionary decision. This indicates that the I.A.D. should be able to consider conditions in the likely country of removal, even when the ultimate country of removal is not known with absolute certainty at the time the s. 70(1)(b) appeal is heard.
Moreover, the legislative history of the section indicates that this Court has long approved of a broad approach to s. 70(1)(b). The I.A.D. itself has long considered foreign hardship to be an appropriate factor to take into account when dealing with appeals brought under this section. The scheme of the Act favours allowing the I.A.D., a specialized tribunal with ample procedural protections, to take foreign hardship factors into account under s. 70(1)(b) whenever a likely country of removal has been established. A harmonious reading of the Act reveals that all relevant considerations should be considered by the I.A.D. whenever possible. It is only when it is not possible for the I.A.D. to consider potential foreign hardship that other provisions of the Act need be resorted to. These alternative provisions are not as robust as a hearing before the I.A.D. The judicial review of a s. 52 ministerial decision as to the country of removal provides only narrow grounds for review, and an application to the Minister for an exemption from regulations under s. 114(2) is essentially a plea to the executive branch for special consideration which is not explicitly envisioned by the Act. Furthermore, the Act does not provide an automatic stay of the removal order when either of these alternative routes is pursued, as it does for appeals before the I.A.D.
At the hearing of a s. 70(1)(b) appeal, the onus is on the permanent resident facing removal to establish the likely country of removal on a balance of probabilities. The Minister may make submissions regarding this issue if he disagrees with an individual’s submissions on the likely country of removal. Generally, this will only occur when the intended country of removal is other than the individual’s country of nationality or citizenship. To allow the I.A.D. to take potential foreign hardship into account does not interfere with the Minister’s jurisdiction to decide the country of removal under s. 52, because the discretion can be exercised at any time. The Minister’s jurisdiction to decide the country of removal becomes inoperative when a removal order is quashed or stayed as there is no longer anyone to remove.
Finally, the object of the Act and the intention of Parliament also support a broad reading of s. 70(1)(b). The open‑ended wording of the section indicates that Parliament intended the I.A.D. to have broad discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so. The object of s. 70(1)(b) is to give the I.A.D. the discretion to determine whether a permanent resident should be removed from Canada. It would be inconsistent with these objectives for a court to narrow the I.A.D.’s discretionary jurisdiction under s. 70(1)(b), and thereby leave foreign hardship concerns to be considered only by the Minister under s. 52 or s. 114(2). The I.A.D. is equipped with all of the tools to ensure that principles of natural justice and the Charter are met, while the same is not necessarily true of s. 52 decisions or s. 114(2) applications. When faced with the problem of a statute which can be read in two ways, one that accords with the principles of natural justice and one that does not, an interpretation that favours a fuller assurance that the requirements of natural justice will be met should be adopted.
The factors set out in Ribic remain the proper ones for the I.A.D. to consider during an appeal under s. 70(1)(b). The I.A.D. is thus obliged to consider every relevant circumstance, including potential foreign hardship under s. 70(1)(b) when the likely country of removal has been established by an individual facing removal. Neither Markl nor Hoang establishes a blanket prohibition against the I.A.D. considering potential foreign hardship. This consideration will not lengthen hearings before the I.A.D., as it is designed and equipped to consider this factor. The I.A.D. does not create an alternative refugee system by considering potential foreign hardship and allowing permanent residents to remain in Canada, because the discretion given to the I.A.D. and the factors it considers are quite different from those considered by the Convention Refugee Determination Division in determining whether a person is a Convention refugee. There is no need for absolute consistency in how the Act deals with Convention refugees and non‑refugee permanent residents.
In the present case, a likely country of removal had not been established before the I.A.D. and, as a result, the matter must be returned to the I.A.D. for a rehearing. If a likely country of removal is established by the appellant, the I.A.D. may consider, pursuant to s. 70(1)(b), potential foreign hardship he will face upon return to that country.
Cases Cited
Applied: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Krishnapillai v. Canada (Minister of Citizenship and Immigration), [1997] I.A.D.D. No. 636 (QL); approved: Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270; overruled: Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 35, aff’g [1987] I.A.B.D. No. 6 (QL); El Tassi v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. No. 993 (QL); distinguished: Markl v. Minister of Employment and Immigration, Imm. App. Bd., No. V81‑6127, May 27, 1985; referred to: Al Sagban v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 133, 2002 SCC 4, rev’g [1998] 1 F.C. 501; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; Moore v. Minister of Employment and Immigration, Imm. App. Bd., No. 78‑3016, December 6, 1978; Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; Minister of Employment and Immigration v. Jiminez‑Perez, [1984] 2 S.C.R. 565; R. v. Lyons, [1987] 2 S.C.R. 309; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Alliance des professeurs catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R. 140; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Grewal v. Canada (Minister of Employment and Immigration), [1989] I.A.D.D. No. 22 (QL); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 6(2) , 7 , 12 .
Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, Art. 33.
Immigration Act, R.S.C. 1985, c. I‑2 [am. 1992, c. 49], ss. 6(2) , 24(1)(b), 27(1)(d), (e), 32(2), 44(1), 48, 49, 52 [am. c. 30 (3rd Supp.), s. 7 ], 53, 69.2, 69.4, 70(1) [am. 1995, c. 15, s. 13], (3)(b), (5), 71, 73(1), 74, 81, 82, 82.1, 83(1), 114(2).
Immigration Act, 1976, S.C. 1976‑77, c. 52, s. 72.
Immigration Appeal Board Act, S.C. 1966‑67, c. 90, ss. 11, 15, 21.
Protocol relating to the Status of Refugees, 606 U.N.T.S. 267.
Authors Cited
Canada. Citizenship and Immigration Canada. Building on a Strong Foundation for the 21st Century: New Directions for Immigration and Refugee Policy and Legislation. Ottawa: Citizenship and Immigration Canada, 1998.
Canada. House of Commons Debates, 2nd sess., 30th Parl., vol. VIII, July 22, 1977, p. 7928.
Canada. Immigration and Refugee Board of Canada, Legal Services. Removal Order Appeals, July 31, 1999.
Concise Oxford Dictionary of Current English, 8th ed. Oxford: Clarendon Press, 1990, “all”.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Kelley, Ninette, and Michael Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 1998.
Waldman, Lorne. Immigration Law and Practice, loose‑leaf ed. Toronto: Butterworths, 1992 (service issues 1993‑2000).
APPEAL from a judgment of the Federal Court of Appeal, [1999] 1 F.C. 605, 169 D.L.R. (4th) 173, 234 N.R. 112, 46 Imm. L.R. (2d) 163, [1998] F.C.J. No. 1776 (QL), affirming a decision of the Trial Division (1996), 125 F.T.R. 76, [1996] F.C.J. No. 1680 (QL), affirming a decision the Immigration and Refugee Board (Appeal Division), [1995] I.A.D.D. No. 1055 (QL), dismissing the appellant’s appeal from a removal order. Appeal allowed.
David Matas, for the appellant.
Judith Bowers, Q.C., for the respondent.
Lorne Waldman and Carol Simone Dahan, for the intervener the Canadian Council of Churches.
Brian A. Crane, Q.C., and Krista Daley, for the intervener the Immigration and Refugee Board.
The judgment of the Court was delivered by
Iacobucci J. —
I. Introduction
1 The fundamental question in this appeal is whether the factor of potential foreign hardship can be considered in deciding whether to uphold an order to remove an individual from Canada. More specifically, this appeal concerns the interpretation of the phrase “having regard to all the circumstances of the case”, as employed in s. 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the “Act”). These words define, in part, what has come to be called the “discretionary” or “equitable” jurisdiction of the Immigration Appeal Division (“I.A.D.”) of Canada’s Immigration and Refugee Board (“I.R.B.”).
2 The question is whether this jurisdiction allows the I.A.D. to consider the potential foreign hardship a permanent resident would face if removed from Canada, or whether only domestic factors can be taken into account. The appellant, Huor Chieu, argues for the former interpretation, on the grounds that a decision regarding whether an individual is to be removed must be informed by where he or she will be removed to. The respondent Minister of Citizenship and Immigration supports the latter interpretation, arguing that where an individual will be removed to is not decided until after the I.A.D. upholds his or her removal, and it is therefore premature for the I.A.D. to consider foreign factors in deciding whether to quash or stay a removal order. The Minister’s position was adopted in the courts below.
3 Ahmad Abdulaal Al Sagban, in the companion case of Al Sagban v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 133, 2002 SCC 4, reasons which are also being released on this date, makes arguments similar to the appellant’s regarding the proper interpretation of s. 70(1)(b). Chieu and Al Sagban were heard together before this Court. Some of the facts and lower decisions in Al Sagban will be referred to in the course of these reasons.
4 I conclude that the appellant’s arguments should prevail and that the I.A.D. can consider foreign hardship in deciding whether to quash or stay a removal order under s. 70(1)(b).
II. Relevant Statutory Provisions
5 There are three statutory provisions which are at the heart of this appeal — ss. 70(1), 52 and 114(2) of the Act, which are set out below. Many other provisions are relevant to the particular facts of this case and to the overall scheme of the Act. They will be cited as they become relevant throughout the course of these reasons. Section 70(1) establishes the I.A.D.’s jurisdiction with respect to appeals by permanent residents from removal orders entered against them (although not law, I have included the marginal notes to the relevant provisions of the Act throughout these reasons as an explanatory aid):
70. (1) [Appeals by permanent residents and persons in possession of returning resident permits] Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
6 Section 52 is the provision under which the country of removal is determined:
52. (1) [Voluntary departure] Unless otherwise directed by the Minister, a person against whom an exclusion order or a deportation order is made may be allowed to leave Canada voluntarily and to select the country for which that person wishes to depart.
(2) [Place to which removed] Where a person is not allowed to leave Canada voluntarily and to select the country for which he wishes to depart pursuant to subsection (1), that person shall, subject to subsection (3), be removed from Canada to
(a) the country from which that person came to Canada;
(b) the country in which that person last permanently resided before he came to Canada;
(c) the country of which that person is a national or citizen; or
(d) the country of that person’s birth.
(3) [Idem] Where a person is to be removed from Canada and no country referred to in subsection (2) is willing to receive him, the person, with the approval of the Minister, or the Minister, may select any other country that is willing to receive that person within a reasonable time as the country to which that person shall be removed.
(4) [Idem] Notwithstanding subsections (1) and (2), where a removal order is made against a person described in paragraph 19(1)(j), the person shall be removed from Canada to a country selected by the Minister that is willing to receive the person.
7 Section 114(2) confers a discretionary decision-making power on the Minister:
114. . . .
(2) [Exemption from regulations] The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person’s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
III. Facts
8 The appellant was born in Cambodia on December 2, 1966. In 1975, he and his family fled to Vietnam in order to escape the Cambodian civil war. The Chieu family resided in Vietnam under a series of temporary resident permits until 1993. On February 12, 1988, the appellant married a Vietnamese citizen. They had a son on November 20, 1988.
9 In 1989, the appellant’s sister came to Canada, sponsored by her Canadian fiancé. In 1991, she in turn sponsored her family, including the appellant, to come to Canada. The appellant submitted his Application for Permanent Residence in Canada at the Canadian Embassy in Bangkok, Thailand, on March 17, 1992. In the application, he misrepresented his status, stating that he was single with no dependents. He did this in order to be eligible to be sponsored as an accompanying dependent of his father as a member of the family class. A previous application, in which he had correctly stated his marital status, had been refused. The misrepresentation was not discovered at the time, and the appellant was landed in Canada on October 21, 1993, along with his parents and brothers. He became a permanent resident of Canada at that time.
10 On March 29, 1994, the appellant attended at the Canada Immigration offices in Winnipeg and made an application to sponsor his wife and child to come to Canada. As a result of this disclosure, an immigration officer reported that the appellant had become a permanent resident of Canada by reason of the misrepresentation of a material fact contrary to s. 27(1)(e) of the Act, which reads:
27. (1) [Reports on permanent residents] An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
. . .
(e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person . . . .
An inquiry was directed to be held by the Director of Immigration for the Prairie Northwest Territories Region.
11 At the inquiry of June 29, 1994, the appellant conceded that he had made a material misrepresentation on his application for permanent resident status. He further stated that he would not be making a refugee claim. The adjudicator ordered his removal pursuant to s. 32(2) of the Act, on the basis that the appellant was a person described in s. 27(1)(e) of the Act. Section 32(2) reads:
32. . . .
(2) [Where person is a permanent resident] Where an adjudicator decides that a person who is the subject of an inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person.
The appellant appealed the order to the I.A.D., not on legal grounds pursuant to s. 70(1)(a) — as he conceded that the removal order was correct in law — but on discretionary grounds pursuant to s. 70(1)(b). On October 30, 1995, the I.A.D. dismissed the appeal, a decision which was upheld by the Federal Court, Trial Division on December 18, 1996 and by the Federal Court of Appeal on December 3, 1998. Leave to appeal to this Court was granted on October 14, 1999.
IV. Judicial History
A. Immigration Appeal Division, [1995] I.A.D.D. No. 1055 (QL)
12 Board Member Wiebe noted that, in an appeal pursuant to s. 70(1)(b), the onus is on an appellant to establish that, having regard to all the circumstances of the case, he or she should not be removed from Canada. She held that the appellant Chieu failed to meet that burden. The board member found that there was “no evidence of oppression or even of significant hardship” facing the appellant in Vietnam. She also made some brief comments regarding the appellant’s lack of connections to Cambodia. However, she gave “minimal” weight to the evidence regarding foreign hardship as she believed, following Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.), that “it is premature for the Appeal Division to take into account the conditions of the person’s country of origin, as the determination of to which country the deported person will be sent rests with the Minister of Immigration”. The relevant domestic considerations did not weigh in favour of allowing the appellant to remain in Canada, and therefore the appeal was dismissed.
B. Federal Court, Trial Division (1996), 125 F.T.R. 76
13 The appellant obtained leave from the Federal Court, Trial Division to commence an application for judicial review of the I.A.D.’s decision pursuant to s. 82.1 of the Act. Before the court, the appellant argued that the I.A.D. had erred in not fully considering the potential hardship he would face in Cambodia, as this was the only country that was legally obliged to accept him upon removal from Canada. The appellant further argued that Hoang was a case involving the removal of a refugee and therefore does not apply to the removal of permanent residents who are not Convention refugees. Muldoon J. rejected both arguments. He held that Hoang does apply to appeals by non-refugee permanent residents pursuant to s. 70(1)(b) as “no determination has yet been made [under s. 52] regarding the country to which applicant will be deported” and, as a result, “an assessment of country conditions by the board would have been premature” (paras. 8 and 10). Muldoon J. therefore concluded that the I.A.D. was correct in refusing to consider conditions in either Vietnam or Cambodia.
14 Consequently, Muldoon J. dismissed the application for judicial review. In the event that he was in error in applying Hoang outside the refugee context, he certified a serious question of general importance so that an appeal could be brought to the Federal Court of Appeal, pursuant to s. 83(1) of the Act. The certified question stated (at para. 16):
Can the Appeal Division of the IRB, in the exercise of its jurisdiction to have “regard to all the circumstances of the case”, under the Immigration Act’s s. 70(1)(b), consider the country (and its conditions) to which the non-refugee appellant would, on the balance of probabilities, be removed when assessing whether “the person should not be removed from Canada”; or not, in accordance with the decision of Mr. Justice MacGuigan in a refugee case, Hoang v. Minister of Employment and Immigration (1990), 120 N.R. 193 at 195; 13 Imm. L.R. (2d) 35 (F.C.A.) quoted above herein?
C. Federal Court of Appeal, [1999] 1 F.C. 605
15 The Federal Court of Appeal answered the certified question in the negative. Linden J.A. for the court agreed with Muldoon J. that Hoang does apply to permanent residents who are not Convention refugees, on the grounds of consistency. He felt that the confusion over this issue had arisen as a result of the decision of the Immigration Appeal Board (“I.A.B.”) in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), which had included “the degree of hardship that would be caused to the appellant by his return to his country of nationality” as one of the relevant factors to be considered under the discretionary jurisdiction of the I.A.B. The I.A.B. was the predecessor of the I.A.D. and had an identical discretionary jurisdiction pursuant to what was then s. 72(1)(b) of the Act.
16 Linden J.A. overruled Ribic on this point. He stated at para. 15:
Let there be no confusion about it — this Court affirms its adherence to Hoang and to its application in non-refugee cases such as this. The Board cannot, in exercising its equitable jurisdiction pursuant to paragraph 70(1)(b), consider, as a circumstance, country conditions in potential destinations of deportees. Moreover, evidence relating to these countries is irrelevant and, therefore, inadmissible. The Board’s jurisdiction under paragraph 70(1)(b) is only to determine whether a person should be removed from Canada. The Board has no business considering the merits or demerits of any potential destination.
Linden J.A. based this conclusion on a number of factors: precedent; the overall scheme of the Act; the wording of s. 70(1)(b) when read in its total context; a need to avoid prolonged hearings before the I.A.D.; the fact that the I.A.D. is neither designed nor equipped to deal with such issues; that allowing it to do so would create an alternative refugee system; and that the Federal Court could handle any increase in the number of judicial review applications that could potentially result from preventing the I.A.D. from examining potential foreign hardship.
17 Having come to this conclusion, Linden J.A. canvassed four potential avenues of recourse, in lieu of an appeal to the I.A.D., through which an individual facing removal could have foreign hardship concerns taken into account: (1) voluntary departure to a safe country pursuant to s. 52 of the Act; (2) an application under s. 114(2) of the Act, asking the Minister to consider the conditions in the country to which the person is about to be sent; (3) an application for judicial review of the Minister’s s. 52(2) decision regarding the country of removal; or (4) a court challenge of the Minister’s decision on Charter or international law grounds if removal might endanger life or security of the person. Linden J.A. therefore dismissed the appeal. The I.A.D.’s reference to the appellant’s connections to Vietnam was held to be of little importance as “it was a cursory reference of no consequence in arriving at [its decision] in this case” (para. 26).
V. Issue
18 There is one issue to be resolved in this appeal: do the words “having regard to all the circumstances of the case” in s. 70(1)(b) of the Immigration Act allow the I.A.D. to consider potential foreign hardship when reviewing a removal order made against a permanent resident?
VI. Analysis
19 In my view, this appeal can be decided by applying principles of administrative law and statutory interpretation, as was the case in this Court’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 11. It is not necessary to address directly the scope and content of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms .
A. Standard of Review
20 Judicial review of any administrative decision must begin with a determination of the proper standard on which the review is to be carried out. Although not explicitly discussed by the courts below in this case, it is apparent that they were reviewing the I.A.D.’s decision on a correctness basis. Is this the appropriate standard? The answer is largely provided by this Court’s decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. In that case, this Court considered, for the first time, the standard of review to be applied to decisions of the I.R.B. For legal questions of general importance, the appropriate standard was held to be correctness. Although Pushpanathan involved the Convention Refugee Determination Division (“C.R.D.D.”) of the I.R.B., not the I.A.D., many of the relevant factors are similar on this appeal.
21 The “pragmatic and functional” approach is employed to determine the proper standard of review in any given case: see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at pp. 1088-90; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 592; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 28-53; Pushpanathan, supra, at para. 27; and Baker, supra, at para. 52. This approach takes into consideration factors such as the expertise of the tribunal, the nature of the decision being made, the language of the provision and the surrounding legislation, and the intention of Parliament. It recognizes that standards of review are appropriately seen as a spectrum, ranging from patent unreasonableness at the more deferential end of the spectrum, through reasonableness simpliciter, to correctness at the more exacting end of the spectrum: see Pezim, at pp. 589-90; Southam, at paras. 54-56; Pushpanathan, at para. 27; and Baker, at para. 55.
22 The appropriate standard of review in this case therefore must be determined by examining the relevant factors. First, the nature of the question under review favours a correctness standard. Like Pushpanathan, supra, and Baker, supra, this appeal involves a serious question of general importance certified pursuant to s. 83(1) of the Act. The jurisdiction of the I.A.D. and the mechanisms through which a decision of the I.A.D. can be appealed are established primarily by the following provisions of the Act:
69.4 . . .
(2) [Sole and exclusive jurisdiction] The Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class.
82.1 (1) [Judicial review by Federal Court] An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court — Trial Division.
83. (1) [Certification necessary to appeal] A judgment of the Federal Court — Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court — Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
23 The resolution of a certified question will generally be of considerable precedential value. The legislative scheme recognizes this fact by providing that questions of general importance, i.e. those that will be applicable to numerous future cases, may be reviewed by the Federal Court of Appeal and, with leave, by this Court. The Act thus evinces a particular concern that questions of general importance be appropriately resolved. For this reason, Bastarache J. concluded in Pushpanathan, supra, that “s. 83(1) would be incoherent if the standard of review were anything other than correctness” (para. 43). However, in Baker, supra, a decision by the Minister under s. 114(2) of the Act was reviewed by L’Heureux-Dubé J. on the intermediate standard of reasonableness simpliciter, even though a question had been certified in that case. In my opinion, the presence of s. 83(1) is not determinative of the standard of review on its own. As this Court stated in Southam, supra, at paras. 36-37, the precedential value of a case is only one factor relevant to the determination of the appropriate standard of review. While the review of an issue of “general importance” weighs in favour of a correctness standard, other factors relevant to the pragmatic and functional approach must still be considered. Indeed, both Bastarache J. in Pushpanathan and L’Heureux-Dubé J. in Baker went on to examine a number of additional factors.
24 In this case, the relevant additional factors also favour the correctness standard. The I.A.D. enjoys no relative expertise in the matter of law which is the object of the judicial review. While in Pushpanathan the matter under review was a human rights issue, an area of law in which deference is usually not given, the issue here is one of jurisdiction, a similar area where little deference is shown. Administrative bodies generally must be correct in determining the scope of their delegated mandate, given that they are entirely the creatures of statute. As Bastarache J. stated in Pushpanathan, at para. 28, “it is still appropriate and helpful to speak of ‘jurisdictional questions’ which must be answered correctly by the tribunal in order to be acting intra vires”. While the I.A.D. has considerable expertise in determining the weight to be given to the factors it considers when exercising the discretionary jurisdiction conferred by s. 70(1)(b) of the Act, the scope of this discretionary jurisdiction itself is a legal issue ultimately to be supervised by the courts. The legal nature of the issue is particularly evident in cases like the one before us, where the Minister is arguing that the I.A.D. has usurped her jurisdiction. The factor of expertise weighed in the opposite direction in Baker, because the Minister “has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply” (para. 59). The issue under review in Baker did not involve a jurisdictional issue like the one presently before this Court, and therefore a more deferential standard of review was appropriate.
25 In addition, Parliament has not enacted a strong privative clause for decisions of the I.A.D. (s. 69.4(2)). As Bastarache J. stated in Pushpanathan (at para. 49), in relation to the similarly worded privative clause for the C.R.D.D. (s. 67(1)), “read in the light of s. 83(1), it appears quite clear that the privative clause, such as it is, is superseded with respect to questions of ‘general importance’”. In my opinion, this is also the case for the privative clause contained in s. 69.4(2).
26 Finally, appeals under s. 70(1)(b) do not engage the I.A.D. in a polycentric balancing of competing interests, but instead require the resolution of an issue in which an individual’s rights are at stake. The I.A.D. is not involved in a managing or supervisory function, but is adjudicating the rights of individuals vis-à-vis the state. This factor also weighs in favour of a less deferential standard of review. For all of these reasons, I conclude that a correctness standard should be applied in reviewing the decision of the I.A.D. in this case. However, it may well be that a more deferential standard would apply to decisions of the I.A.D. in other contexts, particularly if the issue under review were to fall squarely within the specialized expertise of the board.
B. Statutory Interpretation
27 The resolution of this appeal turns on the interpretation given to the words of s. 70(1)(b). What does the phrase “having regard to all the circumstances of the case” mean? Did Parliament intend it to be broad enough to allow the I.A.D. to consider potential foreign hardship when deciding whether to quash or stay a removal order made against a permanent resident? This Court has stated on numerous occasions that the preferred approach to statutory interpretation is that set out by E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the inten